The Current Pandemic and Your Estate Planning Documents

Q. My wife and I signed our estate planning documents quite some time ago. In view of the current COVID-19 Pandemic, we wonder whether there are any revisions we should consider?

A. Excellent question. The short answer is, “Yes”. Here are some specific suggestions relating to some important estate planning documents which you probably signed:

Durable Power Of Attorney: As you know, a Durable Power Of Attorney (“DPOA”) allows you to nominate an Agent who will act for you in managing your financial affairs if you become unable to do so, yourself. Many of these documents are what we call “springing” DPOA’s, in that they only “spring to life” if you lose capacity. Your loss of capacity would typically be certified by one, or possibly two, examining physician(s). In the current chaotic environment of the COVID-19 Pandemic, getting letters from physicians may be difficult. Consider changing your DPOA so that you designate your Agent to have immediate powers, as this will eliminate the need for doctors’ letters. Note: just because you designate your Agent to have immediate powers does not mean that you have surrendered yours. It is like having two sets of cars keys to the same automobile. Each of you would retain powers. Obviously, you would only do this if you have total trust in your designated agent.

Trust: You might consider something similar if you have a Trust and have nominated a successor Trustee to take over upon your incapacity. Instead, consider elevating the Successor to the status of a Co-Trustee, with recitals that trust affairs can be managed by either one of you.

Advance Health Care Directive: An Advance Health Care Directive (“Directive”) appoints a Health Care Agent to speak for you in regard to medical treatment in the event you are unable to do so, yourself. Usually your Agent would meet personally with your physicians to convey your wishes, especially in a critical care situation. However, in the current environment, meeting personally may not always be possible, especially if you were in a hospital setting, and even more so if you contracted the Corona Virus and were in quarantine. Consider authorizing your Agent to communicate with your doctors by electronic communication, video, or other alternate means of communication, as an alternative to a personal meeting, so that your wishes can still be honored. You might also express your wishes about being intubated and connected to a ventilator to save your life. There is growing concern that being on a ventilator may result in lasting disability for the patient, even if he or she recovers from the virus.

POLST: Many patients, especially if they are in a hospital or critical care setting, have signed a “Physician Order for Life-Sustaining Treatment” (“POLST”). A POLST is a two-way statement between you and your doctor which expresses your wishes on end-of-life care. Unlike the health directive, it carries the weight of a Physician’s Order, and usually is prominently positioned in your medical file on bright pink paper so that it can be easily retrieved. Studies indicate that these Physician’s Orders are generally honored more frequently than wishes stated in a Health Directive. Importantly, many POLSTS contain prohibitions on intubation, and this may be the very thing that a doctor might prescribe if you contracted the virus, especially if you need to go on a ventilator. Discuss changes as appropriate with your doctor and then sign a new POLST.

Consider these changes now and chances are that you and your wife will feel much better about your preparedness.